Friday, July 13, 2012

Maggs on the Records of the State Ratifying Conventions

Gregory E. Maggs, George Washington University Law School, has posted an article on SSRN originally published in 2009 as A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457. His abstract explains that it “is one of a series of articles on sources of the original meaning of the Constitution. See also Gregory E. Maggs, A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution, 81 Geo. Wash. L. Rev. (forthcoming 2012); and Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution, 87 B.U. L. Rev. 801 (2007). Here is the bulk of the abstract:

Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates and discussions about the proposed Constitution. Accordingly, writers often cite these records as evidence of the original meaning of the Constitution.

Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. This Article offers a concise guide to these records, providing the basic information that lawyers, judges, law clerks, and legal scholars ought to have before advancing, contesting, or evaluating claims about the original meaning of the Constitution based on the records of the state ratifying conventions. It explains theories of how the records might help to prove the original intent of the Framers, the original understanding of the ratifiers, and the original objective meaning of the Constitution's text. The Article also considers eight possible grounds for impeaching assertions made about the original meaning, recommending that anyone making or evaluating a claim about the original meaning take these eight arguments into account and that anyone using these arguments to impeach claims about the original meaning consider the possible counterarguments.